The E-commerce Law is expected to come into force in Sweden on July 1 2002, provided that it is accepted by Parliament. The law is a result of the implementation of the E-commerce Directive. As well as the new law, some adjustments to the existing Swedish Commercial Legislation Marketing Practices Act, the Financial Instruments Trading Act and the Consumer Credit Act will be made in order to meet fully the directive's requirements.

According to the E-commerce Law, or the Law on Electronic Commerce and other Information Society Services as it is formally known, a service provider established in another country within the European Economic Area (EEA) has the right to provide information society services in Sweden regardless of Swedish requirements for such services or service providers. It is proposed that the service provider's country of establishment is its permanent business location.

According to the bill, Swedish law shall also apply to information society services that are provided by service providers established in Sweden, even though the services, entirely or partially, may be intended for other states within the EEA. This changes the current territorial practice area for some public laws, such as the Swedish Commercial Legislation Marketing Practices Act. This act currently applies to actions that have an effect in Sweden, regardless of where the provider of such an action pursues its economic activity.

The Swedish Commercial Legislation Marketing Practices Act now applies to websites that are intended for the Swedish market, made obvious by, for example, using the Swedish language on the website and by selling goods in Swedish currency. However, the E-commerce Law states that the law of a provider's country of establishment should be applied to websites and other information society services rather than the law of the country in which an action has its effect.

According to the E-commerce Directive, the principle of country of establishment does not cover certain aspects relating to:

  • copyright and neighbouring rights;

  • electronic money; or

  • securities or insurances.

Neither does it affect:

  • the freedom of the parties to choose the law applicable to their contract;

  • mandatory consumer law;

  • mandatory law regarding real-estate contracts; or

  • unsolicited commercial communications by email.

These exceptions will be implemented by provisions in the proposed E-commerce Law or by adjusting existing legislation.

The E-commerce Law only concerns public law; it introduces no new regulations as regards international private law. This distinction is not made as obvious in the underlying directive, which has no explicit rule stating that civil law issues are not comprised by the directive.

According to the bill's preparatory work, public law requirements include application, permission and registration procedures, and obligations to provide information on the marketing, quality and contents of the services provided.

There are also regulations that specify the information the service provider must give, and requirements for the provider to offer suitable and effective technical facilities, which make it possible for a service recipient to identify and amend possible input errors before placing an order. Further, the service provider must confirm the orders.

It is proposed that the new law include regulations which exclude service providers that operate as intermediaries (ie, that only transfer or store information given by others) from liability. Such providers should, under certain circumstances, not be obliged to compensate for damage or to pay a penalty because of the contents of information they handle. A service provider may only be responsible for an offence concerning the content of information if it is intentionally committed.

Certain changes to the Swedish Commercial Legislation Marketing Practices Act have been proposed, for example that persons carrying on electronic business activities must check and respect opt-out registers.

Finally, formal requirements of the Consumer Credit Act and the Financial Instruments Trading Act will be altered to allow the option of contracting by electronic means.

For further information on this topic please contact Agne Lindberg at Advokatfirman Delphi & Co by telephone (+46 8 677 54 00) or by fax (+46 8 20 18 84) or by email ([email protected]).